UNITED STATES of America, Appellee, v. Michael W. JOHNSON, Appellant.
No. 04-1839.
United States Court of Appeals, Eighth Circuit.
Submitted: Oct. 29, 2004. Filed: Aug. 17, 2005.
Social Security Ruling 97-3 addressed a second (or amended) stipulation, but the policy of refusing to be bound by the terms of a stipulation that provides an end-run around the federal offset seems equally applicable to an original stipulation. We see no basis for binding the SSA to the terms of an original stipulation that essentially increases an individual‘s maximum allowable DIB by creating an illusory payment period for attorney‘s fees. If Sunde did not have to pay a WC attorney from January 1 through November 19, then he was entitled to lower federal DIB than the stipulation contemplated for that time period. We cannot allow social security recipients to soften the effects of the federal offset by allocating the payment of attorney‘s fees to any date they wish.
A holding that construes
For the above reasons, Sunde‘s appeal is denied and the district court‘s decision is AFFIRMED.
Michael A. Jones, argued, Asst. U.S. Atty., Springfield, MO, for appellee.
Before BYE, BEAM, and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Michael W. Johnson appeals his conviction of two counts of being a felon in possession of firearms in violation of
I. BACKGROUND
The events of April 29, 2003 form the basis for three of the four counts of conviction. On that day, David Prine discovered that Johnson had stolen a riding lawnmower and three firearms from his residence. Prine proceeded to the Johnson trailer, where he confronted Johnson and accused him of theft. In response, Johnson produced one of the firearms, a .22 magnum caliber rifle. Johnson told Prine that the other firearm was taken by Bo Turley. The third firearm, a double-barreled shotgun, was surreptitiously returned to the Prine residence prior to Johnson‘s arrest.
The same day, a confidential informant informed the Douglas County, Missouri Sheriff‘s Department that Johnson was in possession of stolen firearms. Based on information provided by Prine as well as that of the confidential informant, a search warrant was obtained and executed at the Johnson trailer. Although the deputies were unable to locate the remaining stolen firearms, they discovered a variety of ammunition and three small plastic bags containing methamphetamine.
During the resulting investigation, law enforcement discovered Johnson‘s prior arrest for the January 2002 shootings at the residence of Danny and Mavis Harris in Ava, Missouri. According to evidence admitted at trial, Johnson twice fired a .30-06 deer rifle at the Harris residence in order to exact revenge for an early altercation with the Harrises’ sons. Johnson was charged in state court with two counts of unlawful use of a weapon arising out of the shootings. The state charges were ultimately dismissed after Johnson was charged by federal authorities in the instant matter.
On July 8, 2003, a federal grand jury issued a four-count indictment against Johnson. Count one of the indictment, being a felon in possession of a firearm, stemmed from Johnson‘s firing of the .30-06 deer rifle at the Harris residence. In
At sentencing, the district court found that Johnson qualified for the armed career criminal enhancements in
II. DISCUSSION
A. Sufficiency of the Evidence
Johnson challenges the sufficiency of the evidence to convict him of possessing the two firearms identified in counts one through three. See United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996) (setting forth the elements of the offense of being a felon in possession of a firearm in violation of
With respect to the first count of conviction, Johnson argues that the lack of direct evidence of his actual possession of the .30-06 deer rifle belies the jury‘s finding that he possessed the firearm used in the shootings at the Harris residence. After a careful review of the trial record, we find that there was substantial evidence upon which a reasonable jury could find Johnson knowingly possessed the .30-06 deer rifle. Multiple witnesses provided substantial direct and circumstantial evidence of Johnson‘s possession of the .30-06 deer rifle. For example, Jennifer Hayes testified that she saw Johnson in possession of the .30-06 deer rifle on the night of the shootings. Witness testimony also established how and when Johnson came into possession of the .30-06 deer rifle and verified its identity after he attempted to dispose of the firearm.
Similarly, Johnson challenges his convictions based on his possession of the stolen .22 magnum caliber rifle. He ar-
Finally, Johnson asserts that there was insufficient evidence to establish his possession of the methamphetamine found during the execution of the search warrant. The Government put into evidence the three small plastic bags of methamphetamine found in Johnson‘s trailer. The Government also offered substantial witness testimony establishing Johnson‘s control and ownership over the trailer in which the drugs were found. See United States v. Campa-Fabela, 210 F.3d 837, 839 (8th Cir. 2000) (“Constructive possession of drugs can be established if a person has ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed.“) (citations omitted). Viewing the evidence in a light most favorable to the Government and giving the Government the benefit of all reasonable inferences, it is not difficult to conclude that a reasonable jury could have found Johnson guilty of the misdemeanor offense of possession methamphetamine.
B. Armed Career Criminal Enhancement
Johnson also asserts that the district court erred when it found that he had committed three previous violent felonies requiring imposition of a statutory mandatory minimum sentence under
We review de novo the legal question of whether a prior conviction constitutes a violent felony under
The Armed Career Criminal Act (“ACCA“) requires a statutory minimum sentence of 15 years’ imprisonment where a defendant convicted of a violation of
In June 1998, the State of Missouri filed an amended information charging Johnson as a persistent offender with tampering in the first degree by knowingly and unlawfully operating a 1970 Ford F-350 dump truck without the consent of the owner in violation of
The Supreme Court has held that the determination of whether an offense is a violent felony requires a “categorical approach.” Taylor v. United States, 495 U.S. 575, 602 (1990). When a sentencing court uses this categorical approach, it may look beyond the fact of conviction and the statutory definition of the offense to such sources as “the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 1263, 161 L.Ed.2d 205 (2005). Consequently, in determining whether the tampering charge qualifies as a violent felony, we can look to the charging document, which tells us that Johnson was convicted of knowingly operating a Ford F-350 dump truck without the consent of the owner.
We conclude that the Missouri offense of “tampering by unlawful operation,” much like automobile theft, is a discrete offense which qualifies as a violent felony under
We believe the close connection between tampering and automobile theft is particularly strong where the illegal tampering is committed by operation.6 Tampering by possession, the offense analyzed in Peiffer, differs from tampering by operation in that the former offense merely requires a defendant to enter an automobile in a man-
ner consistent with possession while the latter offense requires a defendant to start the automobile‘s engine.7 See State v. Barnett, 767 S.W.2d 38, 41 (Mo. banc 1989) (“The associated word ‘operates’ [in
C. Sentencing
Prior to oral arguments, Johnson requested leave to file supplemental briefs in light of Blakely v. Washington, 542 U.S. 296 (2004). We held the motion in abeyance pending United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We now take this motion with the case. In light of Booker and our recent decision in United States v. Pirani, 406 F.3d 543 (8th Cir. 2005), we deny the motion because Johnson cannot carry his burden of showing prejudice necessary to be entitled to plain-error relief.
While Johnson objected to the district court‘s finding that tampering by operation qualified as a violent felony under
We apply the plain-error test set forth in United States v. Olano, 507 U.S. 725, 732-36 (1993). The test has been stated as follows:
before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Pirani, 406 F.3d at 550 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).
As in Pirani, the first two factors are satisfied because the district court committed error in applying the guidelines in a mandatory fashion, and the error is plain at the time of appellate review. See Pirani, 406 F.3d at 550. To satisfy the third Olano factor, Johnson must prove by a preponderance of the evidence that there exists “a reasonable probability that he would have received a more favorable sentence with the Booker error eliminated by making the Guidelines advisory.” Id. at 551.
We conclude that Johnson cannot demonstrate a reasonable probability that the
A sentence at the bottom of the guideline range “is insufficient, without more, to demonstrate a reasonable probability that the court would have imposed a lesser sentence absent the Booker error.” Id. at 553. Indeed, according to the district court “a sentence of 262 months is sufficient punishment.” There is nothing else in the record, particularly in light of the district court‘s condemnatory language, to indicate that the district court would, under an advisory guidelines system, impose a sentence of less than 262 months. “[W]here the effect of the error on the result in the district court is uncertain or indeterminate—where we would have to speculate—the appellant has not met his burden of showing a reasonable probability that the result would have been different but for the error.” Id. (quoting United States v. Rodriguez, 398 F.3d 1291, 1301 (11th Cir. 2005)).
We conclude, therefore, that Johnson cannot prove by a preponderance of the evidence that the district court‘s error in imposing a sentence under a mandatory guidelines system affected a substantial right. Because Johnson fails to demonstrate that there exists a reasonable probability that he would receive a more favorable sentence under an advisory guidelines system, we need not proceed to the fourth factor of the plain-error test, “whether to exercise our discretion to review a plain error because it ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.‘” Id. (quoting Johnson, 520 U.S. at 467). Consequently, Johnson‘s sentence does not warrant remand under Booker.
III. CONCLUSION
Substantial evidence supports Johnson‘s convictions for being a felon in possession of firearms and for possessing methamphetamine. Further, the district court properly found Johnson to be an armed career criminal under
BYE, Circuit Judge, concurring in part, dissenting in part.
I respectfully dissent from the majority‘s holding that the Missouri offense of tampering by operation is a “violent felony” under
Based on the “close connection” between the Missouri offenses of tampering in the first degree and vehicle theft, the majority concludes tampering by operation carries the same serious potential risk of injury to others as those identified for the Missouri offense of vehicle theft in United States v. Sprouse, 394 F.3d 578, 580-81 (8th Cir. 2005), in which the court adopted the reasoning in United States v. Sun Bear, 307 F.3d 747, 752-53 (8th Cir. 2002).8 In describing the serious potential risks of injury associated with attempted vehicle theft, the court in Sun Bear hypothesizes a scenario in which the thief, while appropriating a vehicle, encounters the returning driver or a passerby, which leads to the possibility of a violent confrontation. Id. The thief, feeling the stress and urgency of the situation, recklessly drives away in the vehicle, either because he perceives a threat of pursuit or because there is an actual pursuit, which then leads to the potential for a high-speed chase. Id. at 753.
To establish the offense of tampering by operation under Missouri law, the State needs to establish only that the “defendant knew he was operating the car without the consent of the owner.” State v. Presberry, 128 S.W.3d 80, 96 (Mo.Ct.App. 2003) (quoting State v. McIntyre, 735 S.W.2d 111, 112 (Mo.Ct.App. 1987)). The commission of the offense of tampering by operation does not necessarily involve a defendant who appropriates a vehicle directly from the owner. Instead, the defendant in a tampering case is often a subsequent transferee of a vehicle that has been reported stolen. See 32 Mo. Prac. Series, Missouri Criminal Law § 35.1 (describing typical tampering in the first degree offense in Missouri). As such, the commission of the offense of tampering by operation often occurs when law enforcement spots the defendant driving a vehicle that has been reported stolen and apprehends the defendant. See, e.g., State v. Martin, 882 S.W.2d 768, 769-70 (Mo.Ct.App. 1994). Thus, a violent confrontation at the point of appropriation of the vehicle and a recklessly absconding defendant are not seri-
ous potential risks of the commission of the offense of tampering by operation. Certainly, there is always the possibility that a defendant, who knows he is driving a vehicle without the owner‘s consent and is ordered by the police to pull over, may decide to get away from the police rather than pull over. See, e.g., State v. Hinkle, 987 S.W.2d 11, 12 (Mo.Ct.App. 1999). But that is a possible risk whenever law enforcement attempts to stop a vehicle driven by a defendant who fears detection of any unlawful activity.
Furthermore, in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 383, 160 L.Ed.2d 271 (2004), the Supreme Court, in analyzing the term “crime of violence” under
I join in affirming the convictions. I also agree Johnson failed to establish Booker plain error. I dissent from the court‘s holding of tampering by operation as being a violent felony under
Notes
[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—
- has as an element the use, attempted use, or threatened use of physical force against the person of another; or
- is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added).
As the dissent correctly notes, the definitions of “violent felony” and “crime of violence” under[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
- has as an element the use, attempted use, or threatened use of physical force against the person of another, or
- is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (emphasis added).
The Missouri offense of stealing is defined as:A person commits the crime of tampering in the first degree if
...
- He knowingly receives, possesses, sells, alters, defaces, destroys or unlawfully operates an automobile, airplane, motorcycle, motorboat or other motor-propelled vehicle without the consent of the owner thereof.
Mo.Rev.Stat. § 569.080.1(2) .
A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.
Mo.Rev.Stat. § 570.030.1 .